145 Mo. App. 660 | Mo. Ct. App. | 1909
Respondent does plumbing work and installs plumbing apparatus in buildings. In the year 1906, T. L. Houser, one of the original defendants
Two defenses are insisted on: First, that notice of the lien claim was given only to appellant, whereas it should have been given to the three women who had contracted with Houser for the erection of the building' and owned an equitable estate in it at the date of that contract, and also at the date respondent sub-contracted with Houser; second, omitting to make those women defendants and instituting the action only against Houser, the main contractor, and appellant. The record owner of the premises at the date of the contract for the entire building, and also at the date of the sub-contract for the plumbing, was Joseph M. Griffin, and, and as we have seen, he testified he was absolute owner. It looks like there must have been some understanding between him and the women that he would convey the title to them upon payment of what Mount owed him, though this fact was not clearly proved. The first question for decision is whether the lien must fail because notice of the lien demand was not given to the women who -had contracted with Houser. The statutes
We have been cited to no decision which holds a lien cannot be enforced by action, unless the owner of the premises at the time the contract for the improvement was let is made a party to the action, even though, when it is instituted, said owner has no interest in the premises, having conveyed his interest during the progress of the work. It might be argued that as notice of a lien must be given to such owner, therefore the statute intends he shall be a party to an action to enforce the lien. But this conclusion does not follow of course, because the main purpose of the notice of lien is to prevent the owner who contracted for the improvement from paying the original contractor the whole contract price, when a sub-contractor has not been paid
“The person who, as owner of the land, contracted for its improvement, is a proper and usually a necessary party defendant to a suit to enforce mechanics’ liens growing out of such contract. An exception to this rule exists where such owner has conveyed all Ms interest in the property. In that case he is not a necessary party defendant, though he may be made a defendant for the purpose of obtaining a personal judgment against him.” Boisot, sec. 526.
The decisions cited in support of the text, and they do support it, are Rose v. Paper Works, 29 Conn. 256; Kellenberger v. Boyer, 37 Ind. 188; McCormick v. Lawton, 3 Neb. 449; Pickens v. Polk, 60 N. W. 566, 42 Neb. 267; Robins v. Bunn, 34 N. J. L. 322; Cullers v. Bank (Tex. Civ. App.), 29 S. W. 72. We have found no judgment of an appellate court of tMs State which is in point; but a remark by Judge Thompson in Hewitt v. Truitt, supra, shows his opinion agreed with what we have decided. In that case the original owner had not been made a defendant, but only her grantees who bought while the improvement was being constructed. The lien failed because notice of the claim had not been given to either her or her agent, but the court said:
*670 “As the defendants, Klockzin and Simpson, were not the owners, between whom and Truitt the principal contract was made, it is needless to say that notice to them of the claim of lien did not satisfy the statute, although they may have acquired the premises by mesne conveyances from Mrs. Brown prior to the completion of the work. They were indeed, proper parties defendant, under section 3190, Revised Statutes, and if the proper steps had been taken as against Mrs. Brown to establish a lien, it would have been good, as against them; they would have taken the land from Mrs. Brown subject to the incumbrance of the lien, inchoate or otherwise, as the title stood in her. (Italics ours.) [Hewitt v. Truitt, 23 Mo. App. l. c. 447.]
Perhaps there might be some difficulty in sustaining the lien statement under the provision of section 4207 of the statutes which requires “the name of the owner or contractor, or both, if known to the person filing the lien,” to be given in the lien statement. The term “owner” as there used has been held to mean the owner at the time the contract was let. [Downey v. Higgs, 41 Mo. App. 315.] The names of the women were not mentioned in the lien statement but appellant was named as owner. No error has been assigned or point raised in this connection, and though we have referred to it, we decide nothing regarding it.
The judgment is affirmed.